New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2006-040-751, Claim No. 108291


Prisoner Negligence:

While attempting to close a window, a window pane shattered and cut claimant’s hand and forearm. Claim dismissed as there was a failure of proof that a dangerous condition existed of which the State had notice.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Dorian Diaz, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Frederick H. McGown, III, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

In this timely filed claim, pro se Claimant, Dorian Diaz, alleges that the State of New York was negligent in failing to adequately inspect and maintain windows in Tailor Shop 3 at the Clinton Correctional Facility in Dannemora, New York (“Clinton”) . Claimant asserts that, as a result of such negligence, he suffered lacerations to the fingers of his right hand, wrist and forearm when a pane of glass shattered while he was attempting to close one of the windows. The trial of this claim was held at Clinton on September 19, 2006. For the reasons set forth below, the Court determines that Claimant failed to meet his burden of proving by a preponderance of the credible evidence that the State was negligent in connection with his accident.

Claimant’s uncontroverted testimony established that he worked in Tailor Shop 3 which is located in the Industrial Building at Clinton (see Exhibit B). On September 4, 2002, Claimant was directed by the tailor shop officer to close the window above the sewing machine where he was assigned to work. Windows like those in the tailor shop contain large perimeter frames of stationary panes of glass. Inset in the large windows are smaller casement-type windows that open down and inward by hinges (see Exhibit A). They are closed by pushing up and outward. Claimant was standing on the floor and pushed up with one hand on the metal frame of the window, which was located slightly above his sewing machine. The window jammed and jerked slightly. Claimant lost his balance. His right hand slipped from the frame onto the glass. The pane, which already was cracked, shattered and his right hand and forearm went through the glass and were cut (see Exhibit 4). Mr. Diaz was taken to the facility’s emergency clinic for treatment and transferred later that same day to the emergency care center at Champlain Valley Physicians Hospital Medical Center (“CVPHMC”) in Plattsburgh. At CVPHMC, an X-ray indicated a soft-tissue injury to the right forearm, but no evidence of fracture. Claimant was treated and released. However, Claimant still complains of periodic numbness, tingling and pain in his right wrist and hand.

On September 13, 2002, Claimant filed an Inmate Grievance, contending that the windows in Tailor Shop 3 are old, brittle and cracked, and requested that all windows in the Industrial Building be inspected, damaged ones be replaced with secure safety glass, and that all window hinges be inspected and repaired (see Exhibit 3, p. 1). On September 19, 2002, Correction Officer (“CO”) Todd Perry, in his capacity as Clinton’s Assistant Fire and Safety Officer, investigated the accident. He inspected windows in Tailor Shop 3, spoke with the correction officer regularly assigned to that shop and prepared a report concerning the accident. CO Perry’s report states that the windows have been an ongoing problem (see Exhibit 2). He testified that problems were attributable to the age of the windows, the manner in which the hinge mechanisms operate, and the deterioration of the hinges caused by exposure to weather. He stated that some of the windows had a tendency to stick if the hinges were not opened on an even basis with a steady push. In response to Claimant’s grievance, Clinton’s Superintendent noted that repairs are completed as work orders are submitted and that funding to rehabilitate the building has been requested (see Exhibit 3, p. 4). The window broken in Claimant’s accident was repaired on September 23, 2002 (see Exhibit 3, p. 5).

Photographic evidence indicates that the Industrial Building has several dozen windows (see Exhibits A and B). Paul Knapp, Clinton’s Deputy Superintendent for Administration, testified that the windows contain over 2,000 panes of glass. Claimant submitted into evidence copies of four maintenance work order requests relating to those windows during the period from September 2001 through and including the repairs made as a result of Claimant’s accident (see Exhibit 1).
One relates to four broken windows that needed to be repaired in Tailor Shop 3. The second relates to a window that could not be closed in Tailor Shop 8 in the building. The third relates to a window that could not be opened in Tailor Shop 8. The work order in connection with Mr. Diaz’s accident bears the notation “[f]ix and or replace window in shop (in regards to inmate injury on 9-4-02).” No injuries are noted in the other three work order requests.

Deputy Superintendent Knapp testified that Clinton’s operations are funded by the Department of Correctional Services (“DOCS”) as part of the New York State budget and that DOCS has a facilities planning and development division that oversees the department’s capital construction and minor rehabilitation programs. Mr. Knapp further testified that the facility has been allocated $50,000 each year since 2002 for window repairs and replacement as part of DOCS’ minor rehabilitation program. He testified that a facility assessment was conducted in order to determine how best to allocate those funds. Safety, security and environmental factors were considered in prioritizing which portions of the facility were most urgently in need of window repairs. The witness noted that Clinton is the largest prison in the State correctional system and includes approximately 37.5 acres of land within the prison walls, about 210 buildings, over 1.9 million square feet of building space and houses almost 3,000 inmates. It also is an old facility with many buildings constructed during the period from the late-1920s through the mid-1940s that contain windows similar to those in Tailor Shop 3. Mr. Knapp testified that, as a result of the assessment survey, it was determined that funds in 2002 would be directed primarily to the “Clinton Annex” portion of the facility, a former state hospital containing older, double-hung, wooden sash-type windows that were perceived to present a severe safety and security issue.

In order to establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence: (1) a duty of care owed by Defendant to Claimant; (2) a breach of that duty; and (3) an injury suffered by Claimant which was proximately caused by such breach (see Kampff v Ulster Sanitation, 280 AD2d 797; Patrick v State of New York, 11 Misc 3d 296, 320; Rice v State of New York, Claim No. 107632, dated June 19, 2006, Hard, J. [UID No. 2006-032-505]).
The State has a duty to maintain its facilities in a reasonably safe condition in view of all the circumstances (Preston v State of New York, 59 NY2d 997; Bowers v State of New York, 241 AD2d 760). The State, however, is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850; Muhammad v State of New York, 15 AD3d 807; Condon v State of New York, 193 AD2d 874).
Claimant asserts that Defendant breached its duty to maintain the windows in a reasonably safe manner and that the Clinton authorities knew that the windows were in a faulty, dangerous and unsafe condition prior to his accident. In order to prevail then on his claim, Claimant must show: the existence of a foreseeably dangerous condition; that the Defendant created the condition, or had either actual or constructive notice of the condition and; that the Defendant failed to remedy the condition within a reasonable time (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of NewYork, 223 AD2d 688, affd 88 NY2d 955).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence that Defendant was negligent, that it failed to maintain its facilities in a reasonably safe condition or that, as a result, a dangerous condition existed which was the proximate cause of Claimant’s injuries.
The September 19, 2002 memo prepared by CO Perry states that the windows in the Tailor Shop had been a problem in the past and that work orders had been submitted to repair the windows (see Exhibit 2). It is not in dispute that the windows are old. Deputy Superintendent Knapp testified that a plan has been developed to rehabilitate windows at Clinton and that financial resources have been provided to implement that plan. On the other hand, there is no evidence to demonstrate that people are at an elevated risk of injury merely because the windows are old and can be balky to operate from time to time. Three work orders were offered into evidence to document repairs on a handful of the several thousand panes of glass in the building during the year preceding Claimant’s accident. None indicate that people were injured, or even that windows were broken, while people were attempting to open or close the windows. Thus, the record does not support Claimant’s contention that Defendant breached its duty to maintain the windows in a safe condition, or that either the windows in general, or the specific window that shattered in particular, constituted a dangerous condition.
Further, assuming arguendo, that the windows did constitute a dangerous condition, the record does not support Claimant’s contention that Defendant had either actual or constructive notice of a foreseeably dangerous condition and failed to remedy it within a reasonable time (see Pennie v McGillivary, 15 AD3d 639). Claimant failed to produce any evidence of prior similar accidents by way of incident reports, accident reports or by any other evidence (see Bradley v Smithtown Cent. School Dist., 265 AD2d 283; Ambrosio v South Huntington Union Free School Dist., 249 AD2d 346). The work orders do not state that anyone, other than Claimant, has been injured by broken glass while attempting to open or close a window. While the evidence establishes that the windows are old, it does not establish that the windows posed a foreseeably dangerous condition.
Accordingly, Defendant’s motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the claim is dismissed. All other motions made at trial, upon which the Court reserved decision, are denied as moot.
The Chief Clerk is directed to enter judgment accordingly.
October 23, 2006
Albany, New York
Judge of the Court of Claims

[1].Exhibit 1 contains five work orders. However, one relates to an accident that occurred after the subject incident. At trial, the Court specifically informed the parties that it would not consider such post-accident work orders, other than the one with respect to the subject incident.